Copyright 2002 San Jose Mercury News

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San Jose Mercury News…03/26/2002

From LexisNexis

Verizon Communications, EarthLink and public interest groups went to court Monday to challenge a decision by the Federal Communications Commission to insulate high-speed cable Internet service from extensive regulations.

The FCC declared cable-modem service as an information service earlier this month, which means operators like AT&T Broadband and AOL Time Warner are not required to share their systems or provide open access for competing Internet services.

That decision immediately elicited an outcry from public interest groups and Internet service providers (ISPs) who want the cable pipeline open so consumers can have a choice of Internet providers.

"Without non-discriminatory open access, cable operators retain the legal right to censor messages, to limit the size and nature of files which can be uploaded and downloaded and to favor content provided by their commercial 'partners' and 'preferred vendors,' " said Andrew Jay Schwartzman, head of the Media Access Project, a public interest law firm.

The firm is challenging the decision on behalf of Consumers Union, the Consumer Federation of America and the Center for Digital Democracy and filed a lawsuit in the U.S. Court of Appeals for the District of Columbia.

"We think the FCC in their cable modem decision makes legal and policy errors," said Dave Baker, vice president for law and policy at EarthLink, one of the nation's top ISPs.

The FCC declined to comment on the challenges. The National Cable & Telecommunications Association, the trade group for the cable industry, also declined to comment.

The FCC's ruling earlier this month, approved by a 3-1 vote, is the first step in the agency's process for developing rules for regulating cable-modem service. The FCC also sought comment on what rules do and should apply to the service, including whether it should ultimately require open access.

AOL Time Warner and AT&T do offer subscribers a choice of providers for high-speed Internet service in some markets.

The industry estimates there are about 7.2 million cable modem subscribers, outpacing local telephone companies which have signed up roughly half that number for their competing digital subscriber line (DSL) high-speed Internet service.

Local telephone giants like Verizon Communications also chimed in arguing that their own high-speed DSL Internet service should also be subject to just as few regulations because it does not dominate the market.

The carriers want relief from having to share their new DSL fiber networks with rivals as they must do with their older copper networks, in order to compete better against cable operators.

"We petitioned the court to review the cable modem declaratory ruling in order to preserve our position that we're arguing that cable modem and telephony broadband should be treated alike in the regulatory arena," said Verizon spokesman Bob Bishop.